Child Guardianship

A court may appoint an individual as a guardian, who is not the parent of a minor child under age 18, when an action under G.L. Chapter 209C is not pending. Appointment of a guardian may be appropriate when one or both of the parents are found to be unfit, unavailable to care for the child, abandon the child, or surrender custody to a third party and guardianship is in the child’s best interest. Massachusetts General Laws, Chapter 201. Once the guardian is appointed, the guardian will make all of the decisions about the child’s care and custody. The guardian will have the responsibility to determine where the child lives, attends school and what kind of medical treatment the child receives. In disputed cases, a nonparent cannot be appointed as a guardian absent a finding that a parent is unfit. In Guardianship of Estelle, 70 Mass. App. Court 575 (2007), the appellate court found that if the lower court found the father to be fit, the co-guardianship arrangement granted by the lower court could not stand. The father was entitled to custody despite the child being cared for by an uncle and aunt, without objection by father, for 7 years. When a child is 14 years of age, the parents and child can assent to the appointment of a third party guardian.

To begin a guardianship, a party must file a petition with the probate and family court where the child resides. A party must also file an Affidavit Disclosing Care and Custody Proceedings. The court may also require the petitioner to file a bond to protect the child’s assets. If the child has property less than $100, then the bond can be filed without sureties. If sureties are required, the petitioner can use personal sureties. This requires two individuals to sign the petition who are pledging their liability for the penal sum. The penal sum is defined as an amount equal to one and one-half times the value of the child’s personal estate. The penal sum will need to be listed on the bond along with the signatures from the sureties. If the petitioner cannot obtain personal sureties, corporate sureties may need to be obtained. In this circumstance, the penal sum is the value of the child’s estate.

If the parents, and where required the child, assent to the guardianship on the petition, the petitioner can request a hearing to obtain permanent guardianship when the petition is filed with the Affidavit Disclosing Care and Custody Proceedings and the bond. If the parental assents or child’s assent when required are missing, the court will issue a citation. In the citation, there will be a return date listed by which an interested party can file an objection. The petitioner must send by certified mail a copy of the citation at least 14 days before the return date to the parents, the child if 14, to any person with court ordered custody, and any person with whom the child resides. The original citation and the certified mail return receipt requested cards must be filed with the court once service is completed to demonstrate that notice was provided. Notice to DOR must also be provided by certified mail if the child receives public assistance. If the parents, and the child when required, do not sign the certified mail cards or file an appearance in the action, a citation must be served by publication in a newspaper designated by the court and will be required to be published at least 7 days before the return date. The newspaper publication of the citation will need to be cut out of the paper and filed with the court along with the original citation, certified mail cards and return of service. Once these documents are filed by the petitioner, the court can schedule a hearing on temporary guardianship of the child. The petitioner will need to file a motion and bond for temporary guardianship. All parties previously served with the citation will need to be served with the motion and bond by first-class mail. At the hearing on temporary guardianship, the court must consider the fitness of the parents to care for the child and whether the guardianship is in the best interest of the child. If the court enters the temporary guardianship, it can last for a period of 90 days. The temporary guardianship can be renewed if it will expire before the hearing on the permanent guardianship. Even if the guardianship expired, the court can order, nun pro tunc, to continue the guardianship back to the date it expired.

A petitioner must request a hearing if seeking permanent guardianship of a child. However, again, if the parents have assented to the guardianship and a child who 14 years of age or older, has assented to the petition, the guardian can request a final hearing when the petition for guardianship is initially filed. Otherwise, a hearing will need to be requested. Lastly, even if permanent guardianship is awarded to the petitioner, the parent can seek to regain custody by showing a substantial and material change in circumstances and it is in the child’s best interest to return to the parent.


Is There a Difference Between Divorce and Family Law Cases?
What most people think of as a family law case is a divorce case. Divorce, also known as dissolution of marriage, is a legal proceeding to terminate the marriage. The case is filed with the Probate and Family Court in Massachusetts in the county where one party resides. However, if one of the parties still resides in the county where the parties last lived together, the case must be filed in that county. If the grounds for divorce occurred outside of Massachusetts, you must reside in Massachusetts for one year prior to filing. If the grounds occurred in Massachusetts, you or your spouse must reside in Massachusetts and there is no time requirement.
Am I Entitled to Social Security Disability?
Social Security Title II Disability provides disabled workers with monthly benefits and Medicare coverage after receiving SSDI benefits for 24 months. In order to be found disabled, you must be unable to work due to your disability which has lasted or can be expected to last for twelve continuous months. Generally, in order to be found disabled, you must have worked 5 out of the 10 years prior to the date you became disabled. Social Security breaks a year down into four quarters. In 2013, you have worked a full quarter credit if you earned $1,160 of income. If you have earned $4,640, you have earned four credits for the year even if all of your earnings were earned in one month.
Do I Need an Estate Plan?
Estate Planning is the very important process everyone should go through in order to be prepared for one's inevitable, and sometimes unexpected, death. Most of us are fortunate enough to have families that we would like to take care of and friends that we would like to remember with a gift upon our passing. What you own and what your familial obligations are will help determine what kind of estate plan you should have. An estate plan is a gift to your family. Between probate and taxes, your family may spend lots of time and money that could have been saved by an effective estate plan. Your survivors will have a much easier time both emotionally and financially if there is an estate plan in place before your demise.

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